Law of Australia
From Wikipedia, the free encyclopedia
The law of Australia consists of the Australian common law (which is based on the English common law), federal laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of the Australian states and territories. The most important law of Australia is the Constitution of Australia, which describes Australia's system of constitutional monarchy, and forms the basis for the government of Australia.
Each of the States and territories of Australia that are self-governing are separate jurisdictions, and have their own system of courts and parliaments. The system of laws in each State are influential on each other, but not binding. Laws passed by the Parliament of Australia, and common law made by federal courts (such as the High Court of Australia) are federal laws, and apply to the whole of Australia.
The organized system of law and government now in force in Australia is historically dependent for its legal validity on a series of British statues, notably including the Commonwealth of Australia Constitution Act 1900. The authority of the United Kingdom Parliament to enact those statutes depended on the acquisition of the Australian continent as a territorial possession of the British Crown.
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[edit] Common law
[edit] Reception of English law
Traditionally Australia had remained as a "settled" territory which did not have any laws under it. It has been observed that a few years later the country also followed the English common law and statute law as part of the "birthrights" (in William Blackstone's terms) which English people carried with them. It has been observed that the colonies had inheretied United Kingdom laws. Even the first Australian colony, New South Wales, founded on 26 January 1788, followed the same path. Letters patent in 1787 (the New South Wales Charter of Justice) had demanded to establish a court in the new colony.
The law began to develop independently when the Supreme Court of New South Wales was established in 1824, though all decisions were still subject to review by English courts. The United Kingdom Parliament became more powerful to legislate specifically for the colony. In the 19th century such legislation was said to operate by "paramount force".
Other colonies established their own court system and started working independently, as the other colonies were granted independence from New South Wales, and began to develop their common law separately from each other.
[edit] Australian common law
When the High Court of Australia was established in 1903, it began to develop a body of federal common law, relating to areas in which the High Court has original jurisdiction (for example, matters involving international treaties, or cases where the Commonwealth of Australia is a party). By this stage, Australia was more independent from the United Kingdom, and the High Court was bolder in moving away from English law.
After appeals to the Judicial Committee of the Privy Council were abolished by the Australia Acts of 1986, the High Court became the court of "last resort" in Australia. As it stands, appeals to the Privy Council in England are still possible, but require the assent of the High Court of Australia. The High Court has only once granted their assent to any party, in 1912, and indicated in Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985), their intention never to grant such assent again. As such, the court has been completely free to move away from English precedents. In recent years, Australian courts have thus been more amenable to considering the common law of countries like Canada and the United States when deciding cases.
[edit] Federal law
Australian federal laws are made primarily by the Parliament of Australia. Section 51 of the Australian Constitution describes the areas which the Parliament has the power to makes laws about, such as defence, immigration and customs. Section 109 of the Constitution provides that where federal and state laws are inconsistent with each other, the federal law prevails under Section 109 of the Australian Constitution.
[edit] State laws
Each of the Australian States are self-governing, and have their own Parliaments and court systems. In some areas, the law is very similar between the States, and in others, it is very different. A major difference is in the criminal law. In the states of Queensland, Tasmania and Western Australia, the criminal law is governed by statutory criminal codes, whereas the other states rely on the common law. In Victoria, some elements of the criminal law, such as penalties and definitions of various terms, and some of the more recently described crimes, are described by statute. However, most of the major crimes, such as most of the forms of homicide, are still governed by the common law.
[edit] See also
[edit] Specific areas of the law of Australia
- Australian constitutional law
- Australian contract law
- Australian copyright law
- Australian criminal law
- Australian family law
- Australian insurance law
- Australian labour law
- Australian tort law
- Law enforcement in Australia
- Native title
- Same-sex marriage in Australia
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